Justice Brett Kavanaugh’s statement about the Supreme Court’s decision to deny cert to a challenge to Maryland’s ban on so-called assault weapons made sure to note that it doesn’t mean the Court believes the Fourth Circuit got it right in upholding the ban, but that ignores the fact that the denial still means that lawful gun owners (and those who would like to purchase and possess AR-15s in states where they’re banned) are harmed by holding off for another term or two before taking up the issue.
Justice Clarence Thomas, at least, recognized that uncomfortable truth in his written dissent to denial of cert; arguing that “the question is of critical importance to tens of millions of law-abiding AR–15 owners throughout the country”, yet the Court has “avoided deciding it for a full decade.” Waiting another term or two makes no sense, writes Thomas, given that “lower courts in the jurisdictions that ban AR–15s appear bent on distorting this Court’s Second Amendment precedents.”
In a blistering (yet “respectful”) dissent, Thomas points out the fundamental errors made by the Fourth Circuit in upholding Maryland’s ban on commonly-owned semi-automatic rifles and shotguns. First, he argues that the appellate court improperly placed the burden on proving the law unconstitutional on the plaintiffs, when it was actually up to the state of Maryland to prove that the ban fits within the national tradition of gun ownership.
Thomas says the Fourth Circuit also screwed up when it asserted that AR-15s aren’t protected by the Second Amendment because they’re “dangerous and unusual weapons.”
The Fourth Circuit separately erred in determining that AR–15s fall within the historic exception for dangerous and unusual weapons. “A weapon may not be banned” under this principle “unless it is both dangerous and unusual.” Caetano, 577 U. S., at 417 (opinion of ALITO, J.).
Weapons“‘in common use’ today for self-defense” are fully protected. Bruen, 597 U. S., at 32 (quoting Heller, 554 U. S., at 627).The Fourth Circuit nevertheless eschewed any inquiry into the commonality of AR–15s and the purposes for which they are used, which it dismissed as an “ill-conceived popularity test.” 111 F. 4th, at 460. Instead, the court performed its own independent investigation of AR–15s’ “utility for self defense,” examining their “military origin,” “firepower,” and “muzzle velocity,” among other features. Id., at 454–459.
Our Constitution allows the American people—not the government—to decide which weapons are useful for self defense. “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” Heller, 554 U. S., at 634. In line with that principle, and with the tradition of prohibiting only dangerous and unusual weapons, we have never relied on our own assessment of how useful an arm is for self-defense before deeming it protected. In Heller, we found handguns protected because that “class of ‘arms’ . . . is overwhelmingly chosen by American society for th[e] lawful purpose”of “self-defense.” Id., at 628. In Caetano, we recognized that stun guns were protected arms solely because they were not “‘unusual,’” without addressing the state court’s holding that stun guns were “‘dangerous per se at common law.’” 577 U. S., at 412; accord, id., at 417 (opinion ofALITO, J.); Bruen, 597 U. S., at 28. And, in Bruen, we again found “handguns” protected solely because they are “‘in common use’ today for self-defense,” without inquiring whether they are in fact useful for that purpose. Id., at 32.
My only quibble with Thomas’ dissent is that he and his colleagues haven’t found that the Second Amendment only protects those arms that are in common use for self-defense, but instead for all “lawful purposes”. Self-defense is one lawful purpose, and perhaps even at the core of our right to keep and bear arms, but it’s not the only lawful activity in which an AR-15 or other semi-automatic long guns are used or are useful.
Still, that’s a minor issue in what is otherwise a stellar repudiation of the decision to kick this can down the road. Thomas concludes his dissent by noting that, based on the Court’s decision in VanDerStok, the justices have opened the door for the federal government to begin treating semi-automatic rifles as machine guns; something gun control activists have been pushing for several years now.
Recently amended regulations of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) provide that a “firearm” under the Gun Control Act includes objects that “may readily be completed, assembled, restored, or otherwise converted to” a working firearm. 27CFR §478.11 (2023). In VanDerStok, this Court refused to hold that definition unlawful, reasoning that an “artifact noun”—that is, a “word for a thing created by humans”—may “refer to unfinished objects,” and thus that weapon parts kits are as regulable as the firearms they might eventually become. 604 U. S., at ___ (slip op., at 10). But,“‘every single AR–15 can be converted to a machinegun using cheap, flimsy pieces of metal—including coat hangers.’” Id., at ___ (THOMAS, J., dissenting) (slip op., at 13) (quotingVanDerStok v. Garland, 86 F. 4th 179, 208 (CA5 2023)(Oldham, J., concurring)). Thus, on the Court’s logic, it seems that ATF could at any time declare AR–15s to be machineguns prohibited by federal law. 604 U. S., at ___(opinion of THOMAS, J.) (slip op., at 13) (citing 26 U. S. C.§§5861, 5871). Until we resolve whether the Second Amendment forecloses that possibility, law-abiding AR–15 owners must rely on the goodwill of a federal agency to retain their means of self-defense. That is “no constitutional guarantee at all.” Heller, 554 U. S., at 634. I respectfully dissent.
Based on Thomas’ dissent and Kavanaugh’s statement (which also notes that Justices Alito and Gorsuch would have granted cert), it’s pretty clear that there are four votes to overturn “assault weapon” bans and declare them unconstitutional. Kavanaugh’s statement sounds like there’s room to persuade either Chief Justice John Roberts or Justice Amy Coney Barrett to do the same, but it’s going to take some time and effort.
As Thomas makes clear, this shouldn’t be a difficult question, and the decision to let these bans remain in place for at least another term or two will do untold damage to the Second Amendment rights of millions of Americans subjected to these prohibitions. The Supreme Court has said that the Second Amendment isn’t a second class right, but by denying cert in Snope that’s exactly how they’re treating the right to possess some of the most popular and common arms in the country.
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